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Prenuptial (Premarital) Agreements
To get answers to frequent questions about prenuptial agreements, also known as premarital agreements, in Illinois divorce proceedings, please select one of the links below:
What is a Premarital or Prenuptial Agreement?
A premarital agreement is a written contract between two people contemplating marriage. The agreement typically lists all of the property that each party owns, as well as their debts, and defines what each party's property rights will be after they marry both in the event of divorce or death.
Perhaps one of the most frequent scenarios in which premarital agreements are used are those in which one or both of the parties is entering into a second marriage and wishes to preserve property for children from their prior marriage.
Premarital Agreements are usually enforceable so long as there is fair and reasonable disclosure of the assets and financial obligations of each party or a voluntary waiver of said disclosure, the agreement is executed voluntarily and the agreement was not unconscionable when executed. Such agreements addressing divorce often limit a party's ability to seek maintenance (alimony) from her or his spouse. Such agreements addressing estate issues often prevent a party from being able to renounce a will and take a statutory third of the other party's estate.
Under what circumstances will premarital agreements be invalidated or held non-enforceable?
A premarital agreement is not enforceable if the party seeking to have the agreement invalidated proves either:
- The agreement was not entered into voluntarily, or
- The agreement was unconscionable when it was entered into and the party:
- was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
- did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
- did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
Is a waiver of maintenance enforceable in a premarital agreement?
The answer is yes, if the agreement was executed after January 1, 1990. The answer is not as definitive if the agreement was signed before that date. However, if the provision that restricts or waives maintenance (alimony) causes one party undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement, upon a divorce, the court may require the other party to provide support to the extent necessary to avoid such hardship.
Can I restrict my future child support obligation in a premarital agreement?
No. The parties to a premarital agreement are prohibited from making binding provisions about child support payments.
Do I need a lawyer if my fiancé and I have agreed to the terms of a premarital agreement?
Yes, you will need two lawyers -- one for each of you if you want greater assurance that the agreement is likely to be found enforceable. The absence of separate independent counsel may be a red flag in determining whether the agreement is enforceable.
Do I need a premarital agreement if I want my entire estate to go to my children?
Generally, yes. This is one of the primary reasons that people enter into premarital agreements.
 The purpose of this frequently asked questions (FAQs) are to provide a general overview of certain Illinois family law issues. These FAQs are not intended to provide legal advice that applies to any specific case. The nature of family law proceedings is that the facts and circumstances of each case are critical when a lawyer provides legal advice. Further, these FAQs are not intended to be inclusive or to deal with every situation that may arise in matrimonial disputes. You should discuss with your attorney how the particulars of these Questions and Answers may apply to your case.
Hopefully these FAQs will serve at least two purposes for you. It can give you a working familiarity with some basic concepts in Illinois family law so that when you meet with your attorney you will be in a better position to discuss various issues and to use your time efficiently. Because you will likely be receiving a tremendous amount of information in your initial consultation with your attorney, these FAQs might also help you retain critical information and refresh your recollection of what your attorney told you.
The statements contained in these FAQs do not necessarily reflect the positions of the Illinois Chapter of the American Academy of Matrimonial Lawyers.
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